The Constitution of the United States creates a national government of enumerated and therefore limited powers. Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse.
That should be said, and I want to say it as clearly as I can. Nonetheless, I submit that sustaining the mandate would not give rise to the justices’ fears of boundless federal authority.
The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce ... among the several States.” The Court's precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.
Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.
These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others—to health care providers, the government, individuals with insurance, and taxpayers.
In that way, Congress is not creating a market which it then seeks to regulate. The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress's discretion to design legislation to operate within, and to address problems posed by, this vast market.
But the insurance market is so complex that addressing one aspect of the market can easily create others problems. For example, one longstanding problem is that the insurance model makes affordable health care unattainable for many individuals already in poor health. Congress responded by prohibiting insurers from denying coverage or charging higher rates based upon an individual's pre-existing health conditions. Yet given that prohibition, one could reasonably conclude that currently healthy individuals might forgo the purchase of insurance until they need it. That would undermine the viability of the insurance pool, which depends on payments from currently healthy individuals to finance health care for those who need it, when they need it. In this respect, the individual mandate is intimately connected to, and advances the aims of, the overall regulatory scheme put in place by the ACA.
The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem. These factual distinctions in fact illuminate the narrowness of the ground upon which a decision upholding the mandate should stand.
The purported limit on congressional power favored by the mandate's opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. But even if it had any legitimate constitutional purchase, it would be satisfied in the case of the ACA. The overwhelming majority of those subject to the individual mandate are or will be engaged in the economic activity of receiving health care services. For that overwhelming majority, the mandate is a regulation of economic activity.
It is, of course, possible that the mandate could touch individuals living such isolated existences that they will never seek any health care services. For them, the mandate (if enforced against them) would indeed require an unwelcome purchase. But the Court’s cases have always recognized that Congress legislates on an aggregate, nationwide basis. No person can withdraw himself from the ambit of Commerce Clause-based legislation by arguing that, standing alone, his activity, or that a small group like him, does not substantially affect commerce. Congress is entitled to legislate based upon the aggregated activity of the class regulated. Honoring its longstanding traditions of judicial restraint and respect for the coordinate branches, the Court should not, in the present litigation, allow such hypothetical extreme cases to undermine the constitutionality of the ACA for the hundreds of millions already participating in the interstate health care market.
I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”
Henry Paul Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School.